"Where there is a positive duty to file a Form N260, the Legal Advisers having failed to do so they, having made that bed, must lie in it and they will not get an award of costs."
The time honored truth of English Law is that the litigation loser will pay the winner's legal costs. While this precept has been subjected to a number of policy-driven attacks, particularly in the field of personal injury law, it is a fundamental principium with a foundation firmly rooted in fairness i.e. if you chose to waste someone's time and money with an argument you lost, you should pay them for it. But like with all things since man was cast from Eden, it really depends on what forms you filled out.
We are proud to take instruction from a variety of lay, legal and commercial clients. Regretfully and far to often when acting for legal clients, we frequently find time-honored forms have failed to find their way to court. The purpose of this guidance note is to remind legal practitioners of how to get their costs assessed following a hearing. Lay individuals may find it useful when acting as 'Litigants in Person' but as always, should seek legal advice.
ASSESSMENT OF COSTS
Following a successful hearing, the winner is entitled to have their legal costs paid by the loser. This unfortunately does not amount to being handed a blank cheque and unless the parties can agree a figure, the court will be asked to asses the costs.
The rules relating to the assessment of costs are contained in CPR r.44.6(1) and more importantly, the accompanying CPR Practice Direction 44 – General Rules About Costs Para. 9.2. This states that “the General Rule is that the court should make a summary assessment of costs –
(a) At the conclusion of the trial of a case which has been dealt with on the fast track, in which case the order will deal with the costs of the whole claim and;
(b) At the conclusion of any other hearing which has lasted not more than one day, in which case the order will deal with the costs of the application matter to which the hearing related. If this hearing disposes of the claim, the order may deal with the costs of the whole claim … unless there is good reason not to do so, for example where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily.”
For a summary assessment of costs, there is a positive duty on the parties and their legal representatives to assist the judge in making a summary assessment of costs (Para. 9.5(1)) by filing a statement of costs. Specifically:
(2) Each party whom intends to claim costs must prepare a written statement of those costs showing separately in the form of a Schedule:
(a). The number of hours to be claimed;
(b). The hourly rate to be claimed;
(c). The grade of Fee Earner;
(d). The amount nature of any disbursements to be claimed,
(e). The amount of legal representative’s costs to be claimed for attending or appearing at the hearing;
(f). Counsel’s fees; and
(g). Any VAT to be claimed on these amounts.
In practice, the MOJ provides a standard format Statement of Costs Form N260 incorporating the above and the Para. 9.5(3) requires that the Statement of Costs should follow as closely as possible Form N260 unless there is a good reason not to do so.
In the Fast Track arena for trial, an N260 Statement of Costs needs to be filed at least 2 days in advance and for all other hearings, it must be filed and served not more than 24 hours before the hearing. These rules are found at para 9.5(4) which states that: -
“The Statement of Costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event –
(a) For a fast track trial, not less than 2 days before the trial; and
(b) For all other hearings, not less than 24 hours before the time fixed for the hearing.
R (Kuznetsov) v London Borough of Camden [2019] EWHC 3910 (Admin)
n R (Kuznetsov) v London Borough of Camden [2019] EWHC 3910 (Admin), the court reconsidered an order for costs made against the claimant on paper after a judicial review claim was dismissed at a hearing. The court agreed with the order made. The judge then went on to consider the costs of the hearing of the reconsideration application and concluded that the appropriate order was no order as to costs, as the defendant had not filed a statement of costs for summary assessment.
The Judge referred the parties to para. 9.5(1) of PD 44 and the duty that imposes on the parties to assist the court by filing and serving a statement of costs. Due to this failure having no reasonable excuse, it was decided that neither party should be entitled to the costs of the hearing. Mostyn J went onto comment that:
“Where the court is charged with a duty to being cluse by summary assessment, and where there is a positive duty to file a Form N260, the legal advisers having failed to do so they, having made that bed, must lie in it and they will not get an award of costs.”
There are exceptions to these rules found at CPR PD 44 para.9.9(1) and 9.9(2). These are that the court will not make a summary assessment where the receiving party is a child or protected party as defined by CPR Part 21.
COMMENT
What this means in the simplest terms, is that 24 hours before an interim/interlocutory hearing you should serve a signed Statement of Costs on your opponent and e-file it with the court. Should you be lodging an application that can be dealt without a hearing, then you should file a Statement of Costs with your application and thereafter, an updated version should the court order a hearing. For Fast Track trials, the same procedure is required but 2 days in advance.
YOU CANNOT ASK THE COURT TO ASSESS YOUR COSTS, WITHOUT A STATEMENT OF COSTS AND WHERE THIS ERROR DOES OCCUR, THE ORDER IS INEVITABLY SET-ASIDE OR VARIED.
We regularly appear for law firms, commercial and lay individuals at court and are experienced in both recovering our client's costs while protecting you from unjustifiable 'padding' of a cost bill and/or statement. Should you require any legal advice in this field, then contact us today.
D E F I N I T I V E D E C I S I V E D I R E C T
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